Shouting at the ocean with pebbles in my mouth since 2008. The subjects of this blog include forensics, the war-on-terror detainees, the Duke lacrosse case, the Knox/Sollecito case, and the academic world as it intersects the political. It will sometimes examine issues of particular interest to Wilmington, NC and the University of North Carolina at Wilmington.

Monday, August 31, 2009

The execution of Cameron Todd Willingham

The case of Cameron Todd Willingham illustrates several of the themes that have appeared on this blog, as well as in my comments at other blogs. Among them are the unreliability of some kinds of forensic evidence, the problem of inadequate legal representation of indigent defendants, and the malleability of eyewitness accounts to fit post hoc narratives. A recent article in the New Yorker (http://www.newyorker.com/reporting/2009/09/07/090907fa_fact_grann?currentPage=1) casts grave doubt on the quality of initial finding that Mr. Willingham murdered his three children by setting their house on fire. “What’s more, [fire scientist] Beyler determined that the investigation violated, as he put it to me, ‘not only the standards of today but even of the time period.’”

The author, David Grann, notes that indigent defendants on death row must “depend on court-appointed lawyers, many of whom are ‘unqualified, irresponsible, or overburdened,’ as a study by the Texas Defender Service, a nonprofit organization, put it. In 2000, a Dallas Morning News investigation revealed that roughly a quarter of the inmates condemned to death in Texas were represented by court-appointed attorneys who had, at some point in their careers, been ‘reprimanded, placed on probation, suspended or banned from practicing law by the State Bar.’” A recent NPR report implies that Michigan and Florida also have problematic public defender systems (http://www.scpr.org/news/2009/08/17/not-enough-money-or-time-defend-detroits-poor/). “In Miami, they say the only way they can squeeze in jail visits is if they work every weekend. And in Detroit, public defenders haven't seen a raise in more than 30 years.”

“Former Supreme Court Justice Sandra Day O’Connor has said that the ‘execution of a legally and factually innocent person would be a constitutionally intolerable event.’” Mr. Grann concludes, “There is a chance, however, that Texas could become the first state to acknowledge officially that, since the advent of the modern judicial system, it had carried out the ‘execution of a legally and factually innocent person.’”

I approach the criminal justice system as a private citizen, not as one with any special training in the law or politics. I have previously indicated that my suggestions for reforms could benefit from advice from those with greater expertise. Nevertheless, I have seen so much that is troubling that, along with others, I have to ask whether a refusal to look at evidence of innocence is sometimes motivated from cognitive dissonance.

25 comments:

Anonymous
said...

I don't know if Mr. Grann is an attorney, but if he is then maybe he should be reprimanded by the State Bar for this article, in particular this conclusion:

“Former Supreme Court Justice Sandra Day O’Connor has said that the ‘execution of a legally and factually innocent person would be a constitutionally intolerable event.’” Mr. Grann concludes, “There is a chance, however, that Texas could become the first state to acknowledge officially that, since the advent of the modern judicial system, it had carried out the ‘execution of a legally and factually innocent person.’”

Justice O'Connor was referring to a situation in which a prisoner's innocence was clearly established and then and despite this fact, he was subsequently executed. For such an event to occur, ... well, it's really unimaginable isn't it? (Btw, notice that O'Connor does not capitalize "constitutionally". What that means is that she is not referring to the document called "the Constitution" alone, but instead to the constitution of the body politic of America. This is an important distinction sometimes missed by non-lawyers.)

Mr. Grann clearly and deliberately seeks to make this false connection:If (A) Texas executes a prisoner and it is subsequently discovered that he was innocentThen (B) Texas created a "constitutionally intolerable event" of the type described by Justice O'Connor.

To the extent that he has promoted this falsity, he should be, if he is an attorney, disciplined by whatever bar has licensed him.

Speaking of disciplining lawyers, wouldn't it be nice if there were an "State Bar" equivalent for professors? Maybe that's something you could work on?

You continue in your own words: "I have seen so much that is troubling that, along with others, I have to ask whether a refusal to look at evidence of innocence is sometimes motivated from cognitive dissonance."

To which I have to ask, Who is "refusing to look at evidence of innocence"? Juries look at evidence of innocence; courts look at evidence of innocence; state pardon boards look at evidence of innocence; millions of ordinary people look at evidence of innocence. Must everyone look at evidence of innocence in every case before you are satisfied? If not, what are you talking about?

And we may as well get to the bottom of it: What do you want -- an end to the death penalty because some people will -- notice that I acknowledge (arguendo) it will and almost positively has already happened -- be executed who should not be?

The problem in the Willingham case, however, is that the Texas authorities ignored the evidence of innocence, and because they were calling the shots, there was no chance that Willingham could have been able to demonstrate innocence.

As I have said many times before, there NEVER is an excuse for a wrongful conviction and certainly not for a wrongful execution. Wrongful convictions happen because the gatekeepers of our "justice" system don't care about guilt or innocence. If you go back into the trial and period of evidence-gathering in a situation where a wrongful conviction has occurred, you almost always will find misconduct by a government official.

As for me, I have no confidence at all in any authority in the USA ever to do what is right. That does not mean that all do wrong, but rather that I no longer am confident in the way that authorities carry out their duties.

In the interest of full disclosure I oppose the death penalty on the grounds that it has been and will continue to be applied to innocent individuals. I do not believe that any extra deterrent value that the death penalty might have over life imprisonment outweighs this consideration. Your point about the lack of capitalization of the word constitution is a subtle one, and I was unaware of this distinction. Mr. Grann is not a lawyer, and he may be unaware of it, either.

The prosecutor in the Willingham case, the honorable John Jackson, is a retired judge. Judge Jackson wrote a seven-point response to Mr. Grann’s article in the New Yorker (http://www.corsicanadailysun.com/thewillinghamfiles/local_story_241210447.html). Mr. Grann’s response includes a link to an article by Nina Morrison of the Innocence Project (http://www.corsicanadailysun.com/thewillinghamfiles/local_story_246085134.html). Ms. Morrison rebuts all seven point, then wrote “Readers can judge for themselves whether Jackson is deliberately coloring the truth or simply unable to see the facts of the case clearly, perhaps because he cannot face his own role in a great tragedy.” This is one sort of individual I had in mind when I wrote about cognitive dissonance. The other is a person who claims that no innocent person has ever been or could be executed. That does not appear to apply to you.

I will take up one issue that concerns Mr. Willingham’s public defender in a subsequent post. As is also true of Judge Jackson, he is not a disinterested party.

First, thanks for acknowledging the point about “constitutional” vs. “Constitutional”. Attorneys use “terms of art”. I imagine chemists do, too.

Second, thank you for acknowledging that you are a death penalty opponent through and through. I am tempted to ask what other penalties you oppose “on the grounds that [they have] been and will continue to be applied to innocent individuals”. Anyway, I have suspected that you were absolutist death penalty opponent, and this is the reason that I generally have declined to get into the arguments over the details of specific cases you raise – though I will make an exception here as you will see below. My reasoning is that even if I proved to you the validity of the verdict beyond all possible doubt in 10,000 cases you might cite, it would in no way change your rigid view.

Now as to the contrasting arguments about the Willingham case of Judge Jackson and Ms. Morrison:

First, I notice that Ms. Morrison employs some lawyerly sleight-of-hand that seems to, but fails upon more than cursory reading, to refute a point made in Judge Jackson’s sixth point: There Judge Jackson says, “The origin of the fire occured (sic) in the infant twins bedroom”. Ms. Morrison responds, “In fact, even the experts at Willingham’s trial admitted that they could not detect chemicals showing arson in the twins’ room.” But this is what lawyers call “non-responsive”. Judge Jackson did not say, “Willingham used chemicals to start a fire in the infants’ bedroom.” He said the fire originated in the twins’ bedroom and because chemicals are not necessary to start a fire, this fact is not disputed by Ms. Morrison’s response that no chemicals were found in the twins’ room. It is by this sleight-of-hand argument that Ms. Morrison avoids questions like, “Who other than Willingham could have gotten into the twins’ bedroom to start a fire” and “Why would they?”

Second, regarding Willingham’s claim that he made “rescue attempts” (note: plural). Judge Jackson argues, in essence, that if Willingham had made the rescue attempts that he claimed, then he would have suffered more than superficial burns and would have inhaled a measureable amount of smoke. He concludes that the burns were self-inflicted and not the result of any rescue attempts. Ms. Morrison responds (1) that Willingham’s burns were “normal for this type of fire” and (2) that Willingham did not inhale smoke because “firefighters physically restrained him”. But here Ms. Morrison tries to have it both ways. She’s in fact making two mutually contradictory arguments: In the first she argues that Willingham was burned because he made rescue attempts. In the second she argues that Willingham did not inhale any smoke because he was prevented from making rescue attempts. In a courtroom, she would be asked, “Well, Ms. Morrison, which is it? Did he get burned in rescue attempts or did he not inhale smoke because he was prevented from making rescue attempts?” In a courtroom, Ms. Morrison’s argument would be thusly devastated.

I hadn’t intended to, but I will touch on two other matters raised by Judge Jackson and Mr. Morrison. Ms. Morrison writes, “Jackson claims Willingham meant to kill only his twins, citing … a witness who supposedly heard him whisper to his older daughter’s body that she wasn’t supposed to die…. A grieving father telling his dead daughter that she wasn’t supposed to die is not evidence of guilt.” First, Judge Jackson does not cite “a witness”, but “witness statements” (note: plural). Second, the statement in question was not “You weren’t supposed to die”, but “You weren’t the one who was suppose to die.” Clearly the correct statement, if true, strongly implies that Willingham thought someone was supposed to die, just not his eldest daughter. By failing to acknowledge that the statement was heard by more than one witness and by failing to accurately quote the alleged statement and to then address its obvious and ominous connotation, Ms. Morrison goes far to discredit her argument here. (Btw, this is another lawyer trick: If the actual quote is harmful, paraphrase and mischaracterize it.)

Finally, on the matter of the lie detector test. Ms. Morrison acknowledges Judge Jackson’s claim that Willingham refused to take a lie detector test to exclude him from suspicion. She adds, “Defense attorneys routinely advise their clients not to take polygraphs”, which is true, “because they have proven unreliable”. The second half of the sentence, while true in isolation, is not true when combined with the first. We defense attorneys do indeed “routinely advise [our] clients not to take polygraphs”, but the reason for such routine advice is our clients are routinely guilty, not because the tests are unreliable. The tests are not reliable enough to support a guilty verdict, but they are plenty reliable enough to guide a police investigation. If I had a client in Willingham’s shoes, I would have told him that he should take a lie detector test in only two circumstances: First, that he was completely, 100 percent innocent, and second, that he does not want to divert police resources to him that would otherwise be used looking for the real killer of his children. (I suspect this was the same advice given to Willingham.) In such circumstances, outsiders could not be blamed for drawing strongly negative inferences – even if inadmissible in court, for the refusal to take such a test by a supposedly grieving and innocent father. I would also inform him that I would ensure that the test was given by an independent, completely neutral third party, and that all questions would be agreed upon before the test was given.

Readers can judge for themselves whether Ms. Morrison is deliberately coloring the truth or simply unable to see the facts of the case clearly, perhaps because she cannot face her own role in a great farce.

A fine can be refunded. Monetary compensation can be given for prison time served by the innocent. One's good name is restored when the criminal justice system admits it has made an error. The death penalty cannot be rescinded, making it unlike other penalties I have mentioned. Moreover, its deterrence value above and beyond life without parole is at best debatable.

My reason for writing, though, is not to debate the merits of the death penalty; it is to bring to light bad forensics and/or a problematic public defender system that shows up in other cases besides Willingham's. To be continued.

You said that you oppose the death penalty because, "The death penalty cannot be rescinded, making it unlike other penalties I have mentioned."

I just want to make sure I have this straight: If the death penalty were "rescindable", then you would have no problem with it -- or at least, no more than you would have with any other "rescindable" penalty like a fine or imprisonment?

What I meant by the use of the word rescinded is that once the death penalty is applied, it cannot be undone. This is my main objection (though not my only one), but it seems to me that the onus is on those who advocate this sentence, to make plain why they think we need it, not the other way around. Further my interest in the Willingham case is not limited to the death penalty but rather extents to the question of whether or not the indigent are being defended properly and to issues surrounding forensics.

You may recall that I brought up the Willingham case at about the same time I noted that well over a hundred people had been released from death row since the return of the death penalty, whereas roughly one thousand had been executed. Very roughly there was a one-in-eight chance of being released. You never explained what those numbers suggest to you.

Grann wrote, “Beyler determined that the investigation violated, as he put it to me, ‘not only the standards of today but even of the time period.’” I repeat this sentence because it bears upon the question of whether Mr. Willingham should have been convicted at the time. It seems to me that if the forensic analysis was satisfactory for its day but later shown to be erroneous (as may be the case for the crazed glass phenomenon), it would be a different situation.

I will be working well into the evening and may not have time to reply to the other issues you raised until this weekend. However, two other rebuttals to Judge Jackson’s seven points have also appeared, and the interested reader might find some worthwhile comments:

Just two points, at this time: First, what if the "death" penalty was in fact reversible? What if a person could be put to death and later revived through cryogenics or cloning or something? Would that be o.k.?

Second, I have finally read the dumb New Yorker article. I am still utterly unconvinced of Willingham's innocence. (Just one point: Near the end of the article it's said that Willingham admitted to his parents that he never tried to rescue the children. It's suggested that he was so terrified by the fire that self-preservation overcame his fatherly instincts. But wait: Earlier in the article, it said that Willingham woke hearing his young daughter cry "Daddy, Daddy!", saw smoke, and then took time to look for and pull on a pair of trousers before doing anything else. Why would he think he needed to put on his trousers at that moment? It's true that I've never been in a house fire, but I am thinking that if I ever wake up to one, I don't think that my first thought will be, "Oh my God, my house is on fire, I better get dressed!" I submit that if he had the time and calmness to locate his clothes and get dressed, he had the time and calmness to grab his children before exiting the house. As I've said before, most of Mangum's stories make more sense than Willingham's.)

By an amazing coincidence, I recall several years ago watching television and seeing the "Lime Street" test fire as it was videotaped. I had turned on the program shortly after it had begun, so I had to gather the information -- that it was a test related to some arson investigation -- slowly from the narrator. Anyway, when I understood the thesis of the investigators is that this big, overstuffed sofa won't generate enough heat to set the whole room afire, I thought, "They're nuts; of course it will." Sure enough, it did. To read now that this was a "surprise" to "arson experts" makes me question the wisdom of anyone who calls himself one.

I respectfully submit that you are misinterpreting the Lime Street experiment. This house was similar to one that was the site of alleged arson. Mr. Lentini and colleagues furnished the house comparably and ignited the couch without accelerants. The fire produced what appeared to be pour patterns, that had previously been thought to be evidence of an accelerant. It also showed that flashover can happen very quickly without accelerants, a finding that also overturned previously held beliefs. Charring along the base of walls and doorways, and burning under furniture had also been taken as evidence of accelerants, but can occur after flashover.

I also think that your focus on the death penalty with respect to this case is a little bit misplaced. Although some supporters of the death penalty might change their minds if given evidence that an innocent person were executed, others would not. Moreover, as a commenter on a blog I have previously cited has implied, abolishing the death penalty but leaving the case unexamined while Mr. Willingham spent the rest of his life in prison would be almost pointless.

With respect to the lie detector test, I would make four brief points. I have no reason to believe that Mr. Willingham even had a lawyer at the time he was asked to take a polygraph; Mr. Willingham was indigent. On the day of his execution Mr. Willingham acknowledged lying about entering the children’s bedroom. He might have refused to take the lie detector during the time of the initial investigation fearing that this falsehood would be uncovered. He later sought to take a lie detector test, unsuccessfully, from what I can gather. But Judge Jackson implied that if Mr. Willingham had taken and passed a lie detector test, he would have eliminated himself as a suspect. This claim is difficult to believe. If (then prosecutor) Jackson had received a report indicating arson, he would surely have assumed that Mr. Willingham had fooled the lie detector test and proceeded anyway.

No, I'm not misinterpreting the Lime Street test. I'm perfectly prepared to acknowledge that a "flash over" fire that was caused by a non-accelerated fire can produce evidence similar to those caused by fires started with accelerants.

However, you must keep in mind two points. The first is logical, the second factual. First, "no evidence of A" is not equivalent to "proof of non-A". That is, simply because there is no evidence of arson does not prove there was no arson. Second, all this discussion is completely academic (wow, what a surprise) when it comes to the Willingham case: Willingham acknowledged there was an accelerant on the floor of the babies' bedroom.

"Evidence of accelerants was found, but Willingham had an excuse for that, too. Willingham told investigators he poured cologne on the children’s floor “because the babies liked the smell"...."http://www.corsicanadailysun.com/thewillinghamfiles/local_story_250180658.html

Therefore it is too late to debate whether or not there was an accelerant on the babies' room floor. There was. The only debate is whether the accelerant was, as Willingham claimed, "cologne" or something the investigators suspected, like lighter fluid.

TPI's case just gets weaker by the moment, doesn't it? Every time I look at the damned thing, there's another piece of it that falls apart.

Manuel Vasquez, an arson investigator in the Willingham case, testified that he had never been wrong and claimed that almost every fire he investigated was the result of arson. During one period studied in Texas in the 1990s, 40-60% of the fires were believed to be the result of arson. This alone would be reason to be suspicious of the quality of Vasquez’s work, but further investigations into this case make me even more suspicious.

The Chicago Tribune looked into the Willingham case some years ago (http://www.truthinjustice.org/willingham.htm), and they asked several investigators, including John Lentini and Gerald Hurst (who had worked pro bono for the defense) to review a number of materials related to the case:

"There's nothing to suggest to any reasonable arson investigator that this was an arson fire," said Hurst, a Cambridge University-educated chemist who has investigated scores of fires in his career. "It was just a fire.”…

Even Edward Cheever, one of the state deputy fire marshals who had assisted in the original investigation of the 1991 fire, acknowledged that Hurst's criticism was valid.

"At the time of the Corsicana fire, we were still testifying to things that aren't accurate today," he said. "They were true then, but they aren't now.

"Hurst," he added, "was pretty much right on. ... We know now not to make those same assumptions."

As quoted in Mr. Grann’s article in The New Yorker, Craig Beyler “concluded that investigators in the Willingham case had no scientific basis for claiming that the fire was arson, ignored evidence that contradicted their theory, had no comprehension of flashover and fire dynamics, relied on discredited folklore, and failed to eliminate potential accidental or alternative causes of the fire.”

Contrary to your assertion, the Grann article in The New Yorker implies that the investigators thought that lighter fluid was the accelerant used throughout the house. I am unaware of a positive chemical test for the existence of cologne in the bedroom; indeed, all I can find is a reference to mineral spirits by the door, most likely lighter fluid from a grill.

It is worth taking into consideration that Mr. Willingham is not the only person to be accused of arson based on misunderstood evidence; far from it, as this investigative article originally from the Chicago Tribune discusses (http://truthinjustice.org/arson-errors.htm). The Willis case is a close parallel of the Willingham case (http://www.newyorker.com/reporting/2009/09/07/090907fa_fact_grann?currentPage=all).

Surely you do not believe that you know more about fires than Mr. Hurst or Mr. Beyler. Perhaps you can explain why you still believe that Mr. Willingham was guilty despite their reports.

It may be true that one needs a legal education -- the distillation of a half a millenium of the practice of truth-seeking -- in order to understand this case. I cannot give you that education in this highly-constricted forum. But, believe me, I could give enough of it to a jury of 12 persons over the course of a few days or weeks that they would have no problem convicting someone like Willingham.

First, some housekeeping: You say, "Contrary to your assertion, the Grann article in The New Yorker implies that the investigators thought that lighter fluid was the accelerant used throughout the house. I am unaware of a positive chemical test for the existence of cologne in the bedroom; indeed, all I can find is a reference to mineral spirits by the door, most likely lighter fluid from a grill." Before we get to the problem of divining what an article "implies" (why does the article fail to state?) I have to ask, "What 'assertion'?" The only assertion I made is that Willingham confessed to pouring an accelerant on the babies' room floor. That is undisputed. That he said it was cologne while investigators may have guessed ("implied by the New Yorker!") it was lighter fluid is absolutely immaterial. Given Willingham's own statement, there is no longer any room for you or anyone else to argue that "there was no accelerant on the babies' room floor". There was. Get over it. Let's move on to something more fruitful.

You say, "Manuel Vasquez, an arson investigator in the Willingham case, testified that he had never been wrong and claimed that almost every fire he investigated was the result of arson. During one period studied in Texas in the 1990s, 40-60% of the fires were believed to be the result of arson. This alone would be reason to be suspicious of the quality of Vasquez’s work, but further investigations into this case make me even more suspicious." First, Mr. Vasquez wasn't merely "an investigator", he was, IIRC, called the state's best investigator. That is, he is not called to investigate non-suspicious fires, but only suspicious ones. I imagine his biggest employers were insurance companies who suspected fraud by business owners after suspicious fires. I imagine that his testimony was questioned time-after-time by some of the top lawyers in the state.

Think of it like the police coming to investigate a death. Probably 98% or 99% of all deaths are non-criminal, right? But do police investigate 100% of all deaths? No, they investigate only those deaths that "look suspicious", right? But if a police detective were to testify that, say, most of the deaths he investigated were unlawful homicides, and someone said the detective is unreliable because only 1% of all deaths are unlawful homicides, would that sound persuasive to you? Doesn’t that sound crazy?

You say, "Surely you do not believe that you know more about fires than Mr. Hurst or Mr. Beyler. Perhaps you can explain why you still believe that Mr. Willingham was guilty despite their reports."

I don't need to show that I know more about fires than Mr. Hurst or Mr. Beyler. All I need to do is show they don't know much about this particular fire. Fortunately, this would be really easy for any lawyer. (I'm trying to think how I can distill hours of a witness examination into a few sentences. I wonder if I'm wasting my time with you. It seems that nothing short of the full witness stand examination of these experts -- something they have never undergone -- will suffice to move you from your pre-determined position.)

One thing I would show is that these Mr. Hurst and Mr. Beyler reviewed almost none of the evidence. "Did you investigate the crime scene?" "No." "Did you interview the suspect?" "No." I would go over each and every piece of evidence that they did not investigate or even notice. That would take an hour apiece, just covering all the evidence they failed to review before reaching their conclusions!

Or I might try using an analogy and logic. (Logic fettered to experience is often helpful.) I would first make them state the definition of "arson":

"A fire is considered an arson fire when all other accidental causes have been ruled out."

You may want to read that definition a few times, to make sure you have it. (Google "arson investigation" and you should find the definition in the first link.) Don’t continue reading until you are sure you have the definition of arson down cold.

When you think about this definition, you realize how stupid these investigators sound when they say, as at least one (I think Mr. Hurst) did, that "This was not arson. It was just a fire." No, no, no, Mr. Hurst: According to the first principle of your profession, there's no such thing as a "just a fire". There's an accidental fire, and there's arson. If you, Mr. Hurst or Mr. Beyler, want to say this wasn't arson, then, again under the strictures of your own profession, it is your burden to show the accidental cause that has not been ruled out!

Let's say, Prof. Halkides, that I am suspected of murdering Prof. Anderson. (For purposes of this analogy alone, I will use "murder" to include all forms of unlawful homicide.) The evidence shows that he and I were together, alone, in a room when he died. That there was a gun in the room. That he died of a gunshot injury from that gun. That my fingerprints were the only ones found on the gun. And that I gave various alternative theories of his death, all of which were proved unfounded. On that basis of the evidence, I would say that the prosecutor has already made a prima facia case for murder.

Now, let's say I am executed, and years later some lawyer -- a proven expert at "proving" the innocence of guilty people (Barry Scheck claims Willingham is innocent; he claimed OJ was innocent; do you see any pattern starting here?) -- gets some fingerprint experts to examine the fingerprint reports. They don't actually examine the gun itself, of course, just the reports of the crime scene investigators and lab technicians. They don't interview me because though I'm the only person who knows beyond all doubt what happened, I'm now dead. Ditto for the original fingerprint examiner.

All they look at is the paper reports.

And, lo and behold!, they say the techniques used by the on-site investigators and technicians were faulty! They say that there were no fingerprints on the gun! Some of the original participants in the investigation even agree that the original fingerprinting techniques used were faulty -- though not one of them will say that I didn’t murder Prof. Anderson.

Now what? According to the logic of Scheck and the other fans of Willingham, I am proven innocent! Texas has executed an innocent man! Glory days for the anti-death penalty movement!

But wait. Let's think of this like rational people. Let's subtract the evidence of the fingerprints on the gun and see if there is still a basis for conviction. What was that evidence again? (Scrolling up to copy it here.)

"The evidence shows that he and I were together, alone, in a room when he died. That there was a gun in the room. That he died of a gunshot injury from that gun. That my fingerprints were the only ones found on the gun. And that I gave various alternative theories of his death, all of which were proved unfounded." Now, take away the fingerprint evidence: Does its omission now prove that I was innocent? I cannot imagine how any reasonable and unbiased person could answer that question in the affirmative.

As I said, it might take a warm 14 hours of examination of Mr. Hurst and Mr. Beyler. At the end, if you still believe Barry Scheck telling you that their testimony "proves Willingham's innocence", then either I was a poor examiner or you will not be persuaded.

Dr. Beyler is chairman of the International Association for Fire Safety Science.He holds a B.S. degree in fire protection engineering from the University of Maryland, a B.S. in civil engineering from Cornell, an M.S. in mechanical engineering from Cornell, an M.Sc. in fire safety engineering from the University of Edinburgh, and a Ph.D. in engineering science from Harvard. Dr. Hurst holds a Ph.D. in chemistry from Cambridge University. Perhaps you can provide me with Mr. Vasquez’s credentials and we can compare them.

Dr. Beyler’s report rebuts the conclusions that FM Vasquez drew. For example, Vasquez thought that crazed glass meant that the fire burned fast and hot, but crazed glass can result from cold water hitting hot glass. Significantly, Vasquez indicated that the eyewitness reports supported his theory of the fire having three origins. However, Dr. Beyler notes that the early eyewitness accounts saw no fire on the porch when Willingham was outside the house. Beyler’s report quotes Vasquez, “‘The fire, itself, tells me that it’s a very aggressive fire; and, therefore, the fire was not a planned fire. It was a spur-of-the-moment fire.’ Such statements are beyond belief in the context of fire investigation as an applied science.” To sum up, your argument that Dr. Beyler (or Dr. Hurst, for that matter) did not visit the crime scene is misleading. The question is not what was observed, for the most part, it is how to interpret what was observed.

You claim that there was accelerant on the babies’ room floor. I have heard it said that the police report indicates that cologne was poured by Willingham after the fire. With due respect, you were barking up a wrong tree in trying to link the cologne to the fire.

From Dr. Beyler’s report, I found the following: "On cross examination, AC Fogg was asked if Amber could have started the fire. AC Fogg admitted that he could not rule out this hypothesis." Elsewhere in his report he discusses the finding of several cigarette lighters in the home: “Chief Fogg acknowledged that a child could have started the fire with a lighter or match and that his evidence could not eliminate this hypothesis.” Dr. Beyler also wrote, “In examining potential causes of the fire, there was no mention of examining any electrical appliances or the ceiling fan in the children’s bedroom.” To sum up, the investigators simply did not rule out other causes, and that is probably one of the reasons why Dr. Beyler wrote that a conclusion of arson could not be sustained.

Possibly Willingham pulled his pants on while still waking up and before fully realizing the severity of the situation. Obviously, I cannot be sure of his reason, but as evidence of arson, the fact of his pulling on his pants is a pretty slender reed upon which to claim arson. Your version of Willingham’s behavior outside of his house is inconsistent with what I have read elsewhere. He went to a neighbor’s house to ask her to phone someone, but she had no phone. He also broke the windows to the bedroom and had to be physically restrained from reentering the house. IIRC the hospital found a small amount of carbon monoxide in his lungs.

Although I admire the justice system in our country very much, I don’t think it performed very well in the Willingham case. I have commented previously on some of what was wrong with then assistant DA Jackson’s and David Martin (Mr. Willingham’s first attorney) recent comments. Sydney Carton (http://forums.talkleft.com/index.php?topic=2064.msg95359#msg95359) had this to say after reading now Judge Jackson’s recent article (five spelling errors corrected):

“I spent a number of hours checking this largely regurgitated tripe against materials that were previously available on the web. There was simply no excuse for issuing this hogwash.

The innocence panel already knew about these alleged "facts", and had found them wanting, when it requested the new report. Their new expert will present his evidence in person on Oct. 2d. The state will have yet another chance to respond, and a report will then be issued in the spring. However, if it can't do better factually than it is doing so far Willingham "wins" hands done and from six feet underground.The only new thing in the article is a savage attack on the deceased's character by the court appointed defense attorney who, judging his own words, hated his client with a passion and, despite his recent claims that he could not obtain an expert for the defense, merely seems to be saying that he WOULD not call an expert. What the posthumous defense is sayinig now was pretty much standard science then and if the original defense attorney had spent six hours going over the forensics then available to the near illiterate Willingham he could readily have ascertained the fact. If, as now seems likely, Willingham is completely vindicated, Texas should contemplate severe disciplinary action against both attorneys.”

Any sentencing hearing in which Dr. James Grigson was called as a witness ought to be reexamined on that basis alone, IMO. The lawyer for Willingham’s first appeal at least believed him. However, the appeal did not use ineffective counsel as an argument, nor did it challenge the conclusion of arson, IIRC. Although I agree about the importance of the separation of powers, Governor Perry’s actions do not give me the slightest confidence in the executive branch. His office ignored Dr. Hurst’s report, and Mr. Willingham was executed in spite of the questions Dr. Hurst raised. Now Governor Perry has delayed (and perhaps ended) the work of the Texas commission which was to have considered Dr. Beyler’s report.

First, the reason I came back here tonight is today's CNN report, "Critics: Governor part of execution cover-up". http://www.cnn.com/video/#/video/crime/2009/10/04/kaye.execution.coverup.cnn

If you have the stomach for a disgustingly one-sided and conclusory "report", then feel free to watch it. As a former journalist and now an attorney, I was ashamed for the "reporter" who produced this trash. If you watch it, you will notice that she interviews no one but critics of the Governor, though during most of the "report" she just pushes their line herself -- hiding behind the bullshit phrase "critics say", when what she's really saying is "I say". I guess next CNN will show a report called, "Critics Say The Innocence Project Defends Child-Killer". Do you think I should hold my breath waiting for it? Or do you think it would be rather like waiting for the 2006 NY Times to run a story headlined, "Critics Say Prosecutor Defends Obviously Lying Accuser"?

You know, the other day I was trying to take a nap. I turned on the TV to "American Justice" because the host, Bill Kurtis, has a monotone voice that helps me fall asleep. The show had begun about ten minutes before. It was about a Rhode Island cop who was suspected of killing his mistress. The victim had been found strangled and bludgeoned to death in her apartment. There was a broken window and other evidence of a break-in, but nothing was stolen.

About seven years after the event, the cop was put on trial for the murder. The prosecution showed that the victim was deeply in love with the defendant, and that she might be a "Fatal Attraction"-type lover who could disrupt the defendant's marriage and career. The prosecution showed that the defendant, though he attended a party on the night of her death, could not accurately account for a one-hour window during which he left the party and then returned. The prosecution also argued that the signs of a break-in were staged by the defendant to throw investigators off his track.

In rebuttal, the defense produced two alibi witnesses -- the cop's wife and brother -- who gave confused and contradictory accounts of the defendant's whereabouts during the critical one-hour window. The cop did not testify in his own defense.

I was about 10 seconds away from falling asleep when I heard Mr. Kurtis say that the case then went to the jury. I thought to myself, "There's no way on Earth that they can convict on that level of evidence." Then they did. I shot up in bed. I forgot about my nap and I watched the rest of the show.

The cop went to prison for life without parole. He was there for six years when the real killer, an ex-boyfriend of the victim, walked into the police station and confessed. The cop was then freed.

So, you see, I'm not a person who believes every defendant is guilty. In fact, I'm probably more skeptical of alleged facts -- presented by the prosecutor or the defense -- than most people are.

I was unable to view the link. It may have been taken down. I think that Governor Perry failed to avoid the appearance of a conflict of interest when he altered the membership of this commission.

If I had been on the Willingham jury, I think that I would have noted the less-than-convincing motive. However, I might have still voted for conviction on the basis of what might have seemed like strong evidence of arson. It was reading an unfavorable review of Until Proven Innocent in the Nation (IIRC) that first alerted me to this case.

One of the reasons I brought up the Rhode Island case (the defendant's name, IIRC, was Scott Hornoff, in case you want to learn more about the case) is to show that I am ready and willing to join you in your crusade if and when you find a convincing case of error or malfeasance. The Hornoff case was one. The Willingham case isn't even close.

In short, Professor, you are being played for a fool by people who are playing on your philosophical biases to guide you to a mistaken conclusion.

The Hornoff case should also show you the importance of looking at ALL of the evidence in a case before reaching a judgment. It is clear to all of us out here that TIP and other critics of the Willingham case are determined to look at almost NONE of the evidence except the part(s) with which they think they can show error.

I was thinking before I came here the other day, "If they want to question the Willingham evidence, then fine, let's have a re-trial of the whole case." That is, let's look at ALL of the evidence. So it was more than amusing to me to read the article that you recently cited, the Oct. 4, 2009, post from gritsforbreakfast.blogspot.com/.

You can read this for yourself and see how terrified of the evidence are the Willingham advocates. The last thing they want is for people to look at all the evidence, instead only the sliver that they say (and even their opponents agree) is faulty:

"In a lot of ways, I wish the Texas Forensic Science Commission had picked another arson case to examine besides Cameron Todd Willingham. Because it's a death penalty case, the debate quickly devolves into a pointless[!!!] re-trial of Willingham...."

Wait, what are we arguing now? That Willingham was innocent (which damned sure requires a re-trial to determine) or merely that some of the evidence was faulty?

"These thoughts arose this morning as I read a hyper-defensive and frankly embarrassingly dense 21-page rebuttal from the City of Corsicana Fire Chief. Most of the fire chief's report adumbrates in detail other testimonial evidence that has nothing to do with the forensic testimony. He seems to fancy himself a prosecutor and his main concern is to claim Todd Willingham was guilty anyway, not to defend in any meaningful detail the science presented at trial."

Isn't it obvious, Professor, that the Willingham crowd is moving from "he's innocent" to "well, there wasn't sufficient evidence of guilt"? Do you understand the difference? As this blog understands, thanks to groups like TIP the word "exonerate" no longer means what it used to mean. http://prodpinnc.blogspot.com/ "Cameron Todd Willingham: Media meltdown & the death penalty"

Btw, I think there was sufficient evidence of guilt even it the fire marshall had never said a single word about the "faulty scientici evidence" of the crime -- just like there was sufficient evidence of OJ's guilt even without any of the "faulty scientific evidence" in his case. But Barry Scheck convinced a lot of weak-minded people that "if the glove don't fit, you must acquit!" in the OJ case. He's trying to do the same thing in the Willingham one.

Are you going to be one of those who he convinces? Or are you going to look at ALL of the evidence? If you do, I believe there's no way on Earth that you can come to the conclusion that Willingham was innocent of the murder of those three little girls.

Perhaps our language is not as finely discriminating as one would wish with respect to the word innocence. If we are defendants, we are innocent unless proven guilty (http://oregonlawyer.blogspot.com/2009/08/common-media-mistakes-with-legal.html). The jury finds us guilty or not guilty, as opposed to guilty or innocent. However, I have no problem with calling a person innocent, upon whom a jury has rendered a verdict of not guilty. In this context one can define a class of defendants who can prove their innocence, either by showing that it is physically impossible for them to have committed the crime or by showing that someone else did commit the crime. The second class of defendants consists of those who poke enough holes in the prosecution’s case to create reasonable doubt in the minds of the jurors. That distinction is important in some circumstances, but not important in others. Neither class should be convicted. The website you sent seems to make too much of the distinction between proving one’s lack of culpability and simply raising reasonable doubt.

I think that an interesting question to ask with respect to Willingham’s case is whether an identical case tried today would give the same result. I take as a given Dr. Beyler’s conclusion that a finding of arson could not be sustained. I infer from his report that no credible forensic evidence of arson exists; therefore, only his actions and the statements of witnesses might constitute evidence of murder by arson.

In looking over the body of your comments, I am increasingly aware of your tendency toward rudeness and incivility. If it happens again, I will not clear that particular remark, and I may ban any further comments from you. If you would not say it in front of your mother, don't say it here.

About Me

I am a biochemist who specializes in the chemical modification of proteins and the synthesis of potential enzyme inhibitors. I am particularly interested in the chemistry of phosphorus and sulfur as it can be applied to biochemical problems.